Under the doctrine of forfeiture by wrongdoing, "a defendant forfeits his Sixth Amendment right to be confronted by a witness against him, as well as his objection to the introduction of hearsay, if he wrongfully procured the unavailability of that witness with the purpose of preventing the witness from testifying." Roberson v. United States, 961 A.2d 1092, 1095 (D.C.2008). In Ward v. United States, 2012 WL 5512579 (D.C. 2012), the defendant claimed that this doctrine applies "only where the murdered witness was to testify against her killer." The District of Columbia Court of Appeals of course rejected this argument, but the facts of the case raise an interesting question.

In Ward, Marquette Ward and Franklin Thompson were convicted of several offenses relating to the shooting deaths of Mario Evans and Jakhema "Princess" Hansen in the Sursum Corda neighborhood of N.W. Washington. At trial, the prosecution introduced statements made by Hansen pursuant to the doctrine of forfeiture by wrongdoing.

After he was convicted, Ward appealed, claiming, inter alia, that Hansen's statements should have been deemed inadmissible against her. According to Ward, these statements were inadmissible under the doctrine of forfeiture by wrongdoing for at lease three reasons:

(1) the only evidence that the government offered to establish his role in a conspiracy to kill Hansen was the hearsay statement of his alleged co-conspirator Thompson;

(2) Thompson made the independent choice to kill Hansen; and

(3) the doctrine applies "only where the murdered witness was to testify against her killer."

The court initially turned aside these first two arguments, finding that "Devin Evans testified to Ward's own admission...that he sent Thompson and Ward's cousin 'to kill the little girl' and that he 'was supposed to pay...Thompson 8,000 dollars,' but “never paid him because he got locked up.'"

Then, with regard to Ward's third argument, the court

discern[d] no reason why the doctrine should not apply where, by a preponderance of the evidence, the trial court finds that a defendant procured a witness's death to benefit some other person. Cf. United States v. Johnson, 495 F.3d 951, 971 (8th Cir .2007) (concluding that the forfeiture-by-wrongdoing doctrine applied "even though [the defendant] had worked to procure the unavailability of potential witnesses against [her boyfriend] rather than against herself").

All of this is pretty standard black letter law with regard to the doctrine of forfeiture by wrongdoing. But what if the facts of Ward were a bit different. What if Thompson did kill Hansen without any input from Ward? And what if this killing were deemed to be in furtherance of the conspiracy? Even if Ward did not call for the killing, would the doctrine of forfeiture by wrongdoing apply to him pursuant to conspiracy theory, under which the acts of one co-conspirator are attributable to other co-conspirators?